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Thursday, April 21, 2011

A BALCA decision handed down earlier this week finally answered a long standing question regarding PERM and the recruitment standard to be used for college and university professors. In a normal PERM case (not involving a university teaching position), the employer must demonstrate that it recruited for the position and could not find "minimally qualified" U.S. workers. Under a Special Handling case (applicable to college and university professors), the recruitment requirements are different and the applicable standard is different. The employer only needs to show there are no US workers who are at least equally qualified with the alien.

However, Special Handling applications must be made within 18 months after the selection is made. After 18 months, a college or university must use the normal PERM recruitment procedures. The unanswered question has been: Can a college or university that has used the normal recruitment procedures avail itself of the Special Handling "at least at least equally qualified with the alien" standard?

This week's BALCA decision put an end to the uncertainty. On April 18, 2011, BALCA held that in cases involving a college or university teaching position, the employer may select the alien over less qualified U.S. workers regardless of whether the employer uses the basic recruitment process or the Special Handling recruitment process.